United States District Court, D. Connecticut
Pacific Employers Insurance Company, Plaintiff: Austin J.
McGuigan, Joseph Bree Burns, Zisca R. St. Clair, LEAD
ATTORNEYS, Rome McGuigan, P.C., Hartford, CT; Gary Svirsky,
LEAD ATTORNEY, PRO HAC VICE, O'Melveny & Myers LLP - NYC,
New York, NY; John Barden McDonald, LEAD ATTORNEY,
O'Melveny & Myers LLP, New York, NY; Stephen Kress, LEAD
ATTORNEY, PRO HAC VICE, O'Melveny & Myers-NY, New York,
NY; Tancred Schiavoni, LEAD ATTORNEY, O'Melveny & Myers
LLP - NYC, New York, NY.
Travelers Casualty and Surety Company, Successor, Aetna
Casualty and Surety Company, Defendant: Karen L. Dowd, Wesley
W. Horton, LEAD ATTORNEYS, Horton, Shields & Knox, Hartford,
CT; Kevin J. O'Connor, Peter C. Netburn, LEAD ATTORNEYS,
Hermes, Netburn, O'Connor & Spearing, P.C.,-Boston,
Standard Fire Insurance Company, Defendant: Karen L. Dowd,
Wesley W. Horton, LEAD ATTORNEYS, Horton, Shields & Knox,
Hartford, CT; Peter C. Netburn, LEAD ATTORNEY, Hermes,
Netburn, O'Connor & Spearing, P.C.,-Boston, Boston, MA.
Evanston Insurance Company, Defendant: Evan Shapiro, LEAD
ATTORNEY, PRO HAC VICE, Skarzynski Black, New York, NY;
Phyllis M. Pari, LEAD ATTORNEY, Letizia, Ambrose & Falls, New
Saint Francis Care, Inc. d/b/a Saint Francis, Hospital and
Medical Center, Defendant: Charles J. Fischette, Seth A.
Tucker, LEAD ATTORNEYS, PRO HAC VICE, Covington & Burling,
LLP-DC, Washington, DC; Gregory W. Nye, LEAD ATTORNEY,
Bracewell & Giuliani, LLP - CT, Hartford, CT.
R. Underhill, United States District Judge.
case comes before me in a very unusual procedural posture. It
is a declaratory-judgment action concerning the scope of
several insurance policies purchased by a hospital, brought
against the hospital and its primary insurance coverage
by the hospital's excess coverage provider. It initially
came before the late U.S. District Judge Mark R. Kravitz, and
on April 19, 2012, he issued a Memorandum of Decision (doc. #
226) in which he granted a motion for partial summary
judgment and denied two cross-motions for summary judgment.
On August 3, 2012, he issued another Memorandum of Decision
(doc. # 264), in which he granted a motion for
reconsideration, analyzed the central issue raised in that
motion, and " [held] fast to [his] original
holding" ( id. at 2). In that second ruling, he
also ordered briefing on a question raised in the motion for
reconsideration but seemingly not anticipated by the
complaint, and it is not clear whether he intended to rule on
the question in the form of a supplement to his earlier
summary judgment ruling, or as an aid to settlement or trial
in the manner of a ruling on a motion in limine, or
if he had some other motivation to order briefing. Whatever
Judge Kravitz's intention, the parties filed the ordered
briefs, and I heard oral argument on them. The parties raised
two other disputed issues, and at the oral argument I granted
them leave to file additional briefs.
the parties awaited a ruling, though what kind of ruling was
not exactly clear. There was no pending motion--only Judge
Kravitz's order to brief an issue, the resulting briefs,
the supplemental briefs that arose from oral argument, and
uncertainty about what Judge Kravitz intended following the
briefing. I requested that the parties file some sort of
motion if they wanted a ruling, and pursuant to that request
they made a filing styled as a " Joint Motion by All
Parties" (doc. # 317), in which they summarize this
procedural history--attaching Judge Kravitz's two
decisions and the transcript of oral argument--and "
jointly request that the Court decide the issue posed
by" Judge Kravitz in his second ruling ( id. at
4). That joint request is curious, because the previous
sentence says that the parties submit the Joint Motion "
without prejudice to [their] respective positions as to
whether and, if so, how" I should answer the question (
id. at 3). The implication of the " whether
and, if so" is that at least some of the parties do not
think I should answer it at all; and indeed, the
plaintiff's initial briefing on the question states
plainly that " it is not an issue on which [the]
complaint seeks a declaration." PEIC'S Supplemental
Mem. Allocating Defense Costs 3 (doc. # 307 at
7). I have examined the complaint (doc. #
8) and I agree with the plaintiff that it does not call for a
declaration on the question. Moreover, because no resolution
to the question is necessary to reach any of the four issues
on which the complaint does seek declarations--most of which
were resolved by Judge Kravitz's rulings either expressly
or by implication--I conclude that it would be improper for
me to issue an opinion on it as this case is pleaded. The
joint motion by all parties is therefore denied to the extent
that it seeks a ruling on that question. To the extent that
it merely seeks some ruling " as a means to move this
case forward" (doc. # 317 at 3) after the seemingly
open-ended way it was left in the wake of Judge Kravitz's
order for further briefing, it is granted in the form of the
examined the four requests in the complaint's Demand for
Relief (doc. # 8 at 25-26) and Judge Kravitz's two
rulings, and, as described more fully below, I conclude
that giving full effect to Judge Kravitz's rulings
clearly resolves the fourth request and nearly resolves the
first two, or resolves them by implication. Answering the two
questions raised in briefs and oral argument after Judge
Kravitz's second ruling will clarify the resolution of
the first two requests and will resolve the third, thereby
disposing of this case. My ruling on those questions, decided
from the record on summary judgment and as briefed by the
parties on their cross-motions for summary judgment and in
the briefing and argument that followed Judge Kravitz's
second ruling, is as follows.
Background and Procedural History
case arises out of the many claims brought in Connecticut
state courts against St. Francis Hospital (the "
Hospital" ) by victims of the late George Reardon.
Reardon was an endocrinologist at the Hospital and is said to
have sexually abused many children who were his patients over
a period of several decades. The Hospital's insurers
disagree about the scope of their respective policies and
which of them are implicated by that litigation, and this
declaratory-judgment action was filed to resolve the issue.
relevant period of January 1981 to October 1985, the Hospital
carried excess blanket catastrophe liability coverage from
Pacific Employers Insurance Co. (" PEIC" ), which
supplemented General Liability (" GL" ) and
Hospital Professional Liability (" HPL" ) coverage
from Travelers (January 1981 to October 1984) and Evanston
(October 1984 to October 1985). The respective scope of each
policy, and the associated duties to indemnify and to defend,
are disputed in this litigation.
GL coverage part provides indemnity to St. Francis for "
damages because of bodily injury or property damage to which
this insurance applies, caused by an occurrence and
[Travelers] shall have the right and duty to defend any suit
against the insured seeking damages on account of such bodily
injury or property damage . . . ." Aff. of Maria T.
Erkfitz (doc. # 130) Exs. A, C, and D. "
Occurrence" is defined as " an accident, including
continuous or repeated exposure to conditions, which results
in bodily injury or property damage neither expected nor
intended from the standpoint of the insured."
HPL coverage part provides that:
The company will pay on behalf of the insured all sums which
the insured shall become legally obligated to pay as damages
because of injury to any person arising out of the rendering
of or failure to render, during the policy period, the
following professional services:
(a) medical, surgical, dental or nursing
treatment to such person or the person
inflicting the injury including the furnishing of food or
beverages in connection therewith,
(b) furnishing or dispensing of drugs or medical, dental or
surgical supplies or appliances . . . ,
(c) handling of or performing post-mortem examinations on
human bodies, or
(d) service by any person as a member of a formal
accreditation or similar professional board or committee of
the named insured, or as a person charged with the duty of
executing directives of any ...